Mr. Dean O’ Farrell
24310 Perdido Beach Blvd.
Orange Beach, Alabama 36561
Re: Romar house Condominium Association, Inc.
Oar File No. 71670-60096
We have completed our analysis of applicable law and the governing association documents regarding the allocation of responsibility for repairing or replacing damage caused to individual units by water leaking from a water supply line. The following evaluation assumes no evidence of negligence on the part of the Association or the unit owner where the water originated.
Romar House Condominium Association is governed by the Alabama Condominium Ownership Act (Alabama Code § 35-6-1 ct seq.), the Declaration, Articles of Incorporation and By-Laws of the Condominium. Unlike the Alabama Uniform Act of 1991 which applies to buildings developed after 1991, the Alabama Condominium Ownership Act does not address the present issue. Accordingly, the Declaration and By-Laws are the authoritative documents for purposes of the present analysis.
According to the Declaration of Condominium, Section 10.1, the Association is responsible for maintaining the following aspects of the condominium property:
(a) To maintain, repair and replace all portions of a unit, except interior surface and surfacing materials, contributing to the support of the building, which portions shall include but not be limited to the outside walls of the building and all fixtures thereon, and boundary walls of units, floors, load-bearing columns and load- bearing walls.
(b) To maintain, repair and replace all conduits, ducts, plumbing, wiring and other facilities for the furnishings of utility services which are contained in the portions of and maintained by the Association, and all such facilities contained within a unit which service part or parts of the condominium other than the unit within which contained.
(c) To repair all incidental damages caused to a unit in the performance of any of the forgoing work.
Section 10.2 of the Declaration provides in pertinent part “the responsibility of the unit owner shall be as follows … to maintain, repair and replace all portions of his unit except the portions to be maintained, repaired and replaced by the Association.” Section 10.2 of the Declaration further requires unit owners “maintain the surfacing materials within the unit… (and) maintain, repair and replace … all sewer and water lines.”
Section 14.2 of the Declaration clearly states “if the damage is only to those parts of a unit for which the responsibility of maintenance and repair is that of a unit owner, then the unit owner shall be responsible for the reconstruction and repair after casualty. In all other instances, their responsibility for reconstruction and repair after casualty shall be that of the Association.”
Accordingly, absent evidence of negligence, recklessness or willful conduct on behalf of the unit owner in causing a water leak, the Romar House Declaration of Condominium, specifically Sections 10.2 and 14.2, require unit owners to promptly repair or replace damage their respective unis sustain as a result of a water leak.
Similarly, persuasive legal authority indicates that a condominium unit owner may not be held strictly liable for damage resulting from water which escapes from household pipes. According to W. Processor, the Law of Torts, Section 78 (4th ed.) “the law is clear that strict liability does not apply to damages resulting from water in household pipes” [See Cities Service Co.. v. State, 312 So. 2d. 799, 800 (Flu 2d. 1975) (citing W. Processor, The Law of Torts, Section 78 (4th ed.) (which excludes from strict liability those claims arising from water in household pipes).
While the present issue has not been addressed by an Alabama Court, the law in the State of Florida is rather clear that strict liability does not apply to claims arising from loose water escaping from household pipes. (See Cities Service Co. v. State, 312 So. 2d. 799, 800 (Fla 2d. 1975) (See also Sherry v. Regency Insurance Co., 884 So. 2d. 175, 29 (Fla. 2d. DCA 2004) Thus, persuasive authority indicates that absent evidence of negligence, recklessness and/or wrongful conduct on behalf of a condominium unit owner, thereby causing water to escape from household plumbing or piping, one cannot be held strictly liable for damages resulting there from.
Thus, in the absence of evidence of negligence, willfulness and/or recklessness on the
part of a unit owner in reusing a water leak, the individual unit owners whose units sustain
damage are responsible for repairing their units and the Association is responsible for repairing damage to the common elements.
Section 7.6(c) of the Declaration defines the “private elements” of the individual units. Included within the definition of the private elements are ‘be surfacing materials on the interior
of exterior walls and on interior walls separating one unit from another.” Section 7.6 f further includes within the definition of the private elements “the structural components and surfacing materials of the floors and ceilings of the unit … all bathtubs, toilets and sinks. the range, garbage disposal, dishwasher, water heater, air conditioning and heating unit, refrigerator and light fixtures and all hardware and interior and exterior lighting fixtures.”
The Declaration further defines “surfacing materials” as “the materials, including but not limited to, mats, carpeting, sheetrock, decking, boards, panels and the like which are laid upon or attached to foundation slabs and/or to the studs and structural components of walls, and/or to the undersurfaces of ceiling rafters, and/or to the upper surfaces of floor slabs.”
In short, absent evidence of negligence, willfulness and/or recklessness on the part of the unit owner from which the water leak originated, the individual unit owners are responsible for repairing or replacing damaged portions of their unit, including any damaged sheetrock. baseboards and/or trim materials from the studs inward The unit owners are further responsible for repairing the structural components of the floors and ceilings, i.e. the floor coverings, carpeting, tile and ducking attached to the studs, as well as the surfacing materials of the ceiling attached to the studs.
The Condominium Association is responsible for promptly repairing any damage to the common elements, limited common elements and portions of fire units contributing to the structural support of the building, i.e. load-bearing walls and columns.
Should you have any questions or comments, please do not hesitate to contact me.
Very Truly Yours,
Jonathon R Law
For the Firm